J-S26041-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ANTHONY DAVID STEWART

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1361 MDA 2020

Appeal from the Order Entered September 21, 2020

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000945-2019

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: NOVEMBER 19, 2021

The Commonwealth of Pennsylvania appeals from the trial court’s Order 

granting, in part, the Motion to Quash Information filed by the Appellee, 

Anthony David Stewart (“Stewart”), and directing Stewart to file a Motion to 

withdraw his guilty plea, or, in the alternative, allowing Stewart to be 

sentenced for the charges of Driving Under the Influence of Alcohol (“DUI”)—

Highest Rate, and DUI—General Impairment as first offenses.

1, 2 We affirm.

In its December 23, 2020, Opinion, the trial court summarized the 

history underlying the instant appeal as follows:

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1 See 75 Pa.C.S.A. § 3802(a)(1) and (c).

2 The Commonwealth has certified that the trial court’s Order will terminate 

or substantially handicap its prosecution, in accordance with Pa.R.A.P. 311(d). 
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On March 26, 2013, [Stewart] was charged with [DUI]—

Highest Rate ([misdemeanor (“M”)]), DUI []—General Impairment 

(M), and related Summary Offenses. On October 2, 2013, 

[Stewart] was accepted into the Accelerated Rehabilitative 

Disposition [([“ARD”)] Program of Lebanon County on those 

charges. On March 13, 2015, [Stewart] completed the ARD 

Program.

On April 18, 2019, [Stewart] was charged with DUI []—

Highest Rate, Second Offense ([first-degree misdemeanor])[;] 

DUI []—General Impairment, Second Offense (M)[,] and related 

Summary Offenses. ... [On October 8, 2019, Stewart entered a 

negotiated guilty plea to the DUI offense, each as a second 

offense, in exchange for a sentence of 90 days in jail, and 

compliance with a drug and alcohol evaluation.] On May 20, 2020, 

the Superior Court of Pennsylvania issued a decision which held 

that a prior acceptance of ARD, absent proof beyond a reasonable 

doubt [that] a defendant committed the prior offense, cannot be 

counted as a prior offense for DUI sentencing purposes. [See 

Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).]

Trial Court Opinion, 12/23/20, at 1-2 (footnotes omitted). 

Following this Court’s decision in Chichkin, Stewart filed a Motion to 

Quash the DUI charges graded as second offenses.3 After the filing of briefs

and oral argument, the trial court entered an Order directing Stewart to file a 

motion to withdraw his guilty plea within 14 days. Trial Court Order, 9/21/20, 

at 1. The trial court further directed that, “[i]f [Stewart] fails to do so, he 

shall appear for sentencing ..., consistent with the [d]ecision in this case that 

the ARD does not constitute a first conviction and that the mandatory 

minimums would be amended.” Id. at 1-2. 

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3 Section 3804 of the Motor Vehicle Code sets forth mandatory minimum 

sentences for first, second, and subsequent DUI offenses. See 75 Pa.C.S.A. 

§ 3804. 
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On September 23, 2020, the Commonwealth filed a Motion to 

Modify/Reconsider the trial court’s September 21, 2020, Order. On 

September 24, 2020, the trial court declined to sign the Commonwealth’s 

proposed Order.4 On October 8, 2020, as Stewart had not filed a motion to 

withdraw his plea, the trial court filed an Order scheduling Stewart’s 

sentencing hearing for October 28, 2020. Trial Court Order, 10/8/20. On 

October 21, 2020, the Commonwealth filed the instant timely Notice of Appeal, 

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters 

complained of on appeal. 

The Commonwealth presents the following claim for our review:

Did the trial court err in directing that [Stewart], who was awaiting 

sentenc[ing] after entering a negotiated guilty plea to a secondoffense DUI, appear for sentencing as a first-time DUI offender 

with automatic amendment of his mandatory minimums on the 

basis of the Chichkin decision, when that Order deprived the 

Commonwealth—in contradiction to the language and intent of 

Chichkin—of the opportunity to offer proof beyond a reasonable 

doubt before a trier of fact that [Stewart] had committed a 

previous DUI?

Commonwealth’s Brief at 6. 

The Commonwealth claims that the trial court improperly granted 

Stewart’s Motion to Quash, and further erred by directing Stewart to appear 

for sentencing as a first-time DUI offender. Id. at 22. According to the 

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4 The word “unsigned” is handwritten across the proposed amended 

sentencing order, along with a stamp indicating that the parties were notified 

of the trial court’s action on September 24, 2020. 
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Commonwealth, the trial court misinterpreted Chichkin as precluding the 

Commonwealth from proving that Stewart had committed the prior DUI 

offense underlying his ARD acceptance. Id. at 23-24. The Commonwealth 

argues that “the trial court deprived the Commonwealth of the opportunity to 

provide the proof specifically permitted by Chichkin.” Id. at 24. The 

Commonwealth argues that the trial court should have required Stewart to 

either accept the terms of the negotiated plea, or proceed to trial, during which 

the Commonwealth would prove the prior DUI offense. Id. Further, the 

Commonwealth asserts that the trial court “rewarded” Stewart by not 

requiring him to withdraw his plea. Id. 

The Commonwealth claims that the trial court erred in its interpretation 

of Chichkin and its progeny. Id. at 25. The Commonwealth would distinguish 

Chichkin and Commonwealth v. Roche,

5 because the defendants in those 

cases already had been sentenced. Commonwealth’s Brief at 26. According 

to the Commonwealth, “[t]he procedural posture of the instant case is 

critically different[,]” as Stewart was awaiting sentencing. Id. at 27. The 

Commonwealth further points out that Stewart had entered a negotiated guilty 

plea to second-offense DUI charges. Id. at 28-29. The Commonwealth 

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5 This Court consolidated the appeal of Lisa Roche (“Roche”),

Commonwealth v. Roche, 3475 EDA 2018, with the appeal of Igor Chichkin, 

Commonwealth v. Chichkin, 3473 EDA 2018, for disposition. 
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argues that, by pleading guilty to second-offense DUI charges, Stewart 

conceded the prior DUI offenses. Id. at 30. 

The Commonwealth further disputes the trial court’s interpretation of 

Chichkin as holding that an offense for which someone has accepted ARD 

cannot be considered a “first offense” under any circumstances. Id. In 

support, the Commonwealth relies upon the following statement in Chichkin:

Accordingly, if the Commonwealth seeks to enhance a defendant’s

DUI sentenced based upon that defendant’s prior acceptance of

ARD, it must prove, beyond a reasonable doubt, that the

defendant actually committed the prior DUI offense.

Commonwealth’s Brief at 24 (quoting Chichkin, 232 A.2d at 970-71)

(emphasis added). The Commonwealth asserts that the Chichkin Court thus

recognized the availability of a procedure by which the Commonwealth could

offer proof of the prior offense. Commonwealth’s Brief at 23-24. According

to the Commonwealth, the trial court erred by prematurely quashing Stewart’s 

instant charges, as second-offense DUIs, because it deprived the 

Commonwealth of the opportunity to prove the prior offenses. Id. at 36. 

As this case involves a question of law, our “standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Diamond, 945 

A.2d 252, 256 (Pa. Super. 2008). 

Upon review, we cannot agree with the Commonwealth’s interpretation 

of Chichkin. In Chichkin, a panel of this Court was asked to determine “the 

constitutionality of the provision of the mandatory minimum sentencing

statute for [DUI], 75 Pa.C.S.[A.] § 3806, which treats a prior acceptance of 
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[ARD] in a DUI case as a prior conviction for sentencing enhancement 

purposes.” Chichkin, 232 A.3d at 961. In arguing that their sentences were 

unconstitutional, the Chichkin defendants/appellants relied upon the United 

States Supreme Court’s holding in Alleyne v. United States, 570 U.S. 99 

(2013).6 Chichkin, 232 A.3d at 964. Applying Alleyene, the Chichkin Court 

concluded the following:

[T]he question presented in the present appeals is whether [the 

a]ppellants’ prior acceptances of ARD constitute an unproven 

“fact,” which must be submitted to a jury, or a prior conviction, 

which may be determined by the court at sentencing.

....

[B]ecause Appellants’ prior acceptances of ARD do not constitute 

convictions “cloaked in all the constitutional safeguards,” we 

conclude they are a “fact” that, pursuant 

to Alleyne, Apprendi,

[7] and their progeny, must be presented 

to the fact finder and determined beyond a reasonable doubt 

before a trial court may impose a mandatory minimum sentence 

under Section 3804. Accordingly, that portion of 75 Pa.C.S.[A.]

§ 3806(a), which statutorily equates a prior acceptance of ARD to 

a prior conviction for purposes of subjecting a defendant to a 

mandatory minimum sentence under Section 3804, is 

unconstitutional....

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6

In Alleyne, the United States Supreme Court had held that “[a]ny fact that, 

by law, increases the penalty for a crime is an ‘element’ that must be 

submitted to the jury and found beyond a reasonable doubt.” Alleyne, 570 

U.S. at 103.

7 See Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000) (recognizing 

that “[t]he judge’s role in sentencing is constrained at its outer limits by the 

facts alleged in the indictment and found by the jury. Put simply, facts that 

expose a defendant to a punishment greater than that otherwise legally 

prescribed were by definition ‘elements’ of a separate legal offense.”).
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Chichkin, 232 A.3d at 968 (two footnotes omitted; one footnote added). In 

a footnote, the Chichkin Court explained that “[n]owhere during the guilty 

plea hearing did the Commonwealth prove, or did [appellant] Roche concede, 

that she committed the prior DUI offense. Accordingly, her enhanced 

sentence violates Alleyne and due process concerns.” Id. at 971 n.14. Thus, 

the Chichkin Court reviewed only the constitutionality of the mandatory 

minimum sentencing statute, as applied to those defendants. It did not 

consider or approve an alternative procedure by which to establish a DUI 

offense that underlies a prior acceptance of ARD. 

Notwithstanding, we acknowledge the following statement by the

Chichkin Court: “[I]f the Commonwealth seeks to enhance a defendant’s 

DUI sentence based upon that defendant's prior acceptance of ARD, it must 

prove, beyond a reasonable doubt, that the defendant actually 

committed the prior DUI offense. Any lesser standard would violate due 

process concerns.” Id. at 970-71 (emphasis added, footnote omitted). 

However, because the Chichkin Court was not asked to determine whether 

any procedure could satisfy due process concerns, the Chichkin
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Court’s statement in this regard constituted dicta, and is not precedential.

8

 

See Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 

2015) (defining “dicta” as an opinion by a court “on a question that is not 

essential to the decision[,]” and recognizing that dicta “has no precedential 

value.”) (citation omitted)).

In the instant case, our review of the record of the guilty plea hearing

discloses that the following inquiry took place:

THE COURT: Have you had an opportunity to read over the

charges and do you understand that you are charged as follows?

At Action No. 945 of 2019, March 11, 2019[,] at 1240 King

Street, South Lebanon Township, Count I is Driving under the

Influence of Alcohol, blood alcohol content of .30[.]

Count II, Driving Under the Influence of Alcohol—that first

one was a second offense.

Count II[,] Driving Under the Influence of Alcohol, incapable

of safe driving.

Two summaries, Driving While Operating Privilege is

Suspended or Revoked, and Careless [D]riving.

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8 Moreover, the Chichkin Court could not judicially craft a new procedure that 

the legislature did not enact. See Commonwealth v. Wolfe, 140 A.3d 651,

662-63 (Pa. 2016) (holding that a mandatory minimum sentencing statute

that requires judicial fact-finding at sentencing is unconstitutional under

Alleyne, and that the Court could not rewrite the statute to allow the a 

mandatory minimum sentence based on a jury finding); Commonwealth v.

Hopkins, 117 A.3d 247, 262 (Pa. 2015) (holding that, after the provisions of 

a mandatory minimum sentencing statute became unconstitutional pursuant 

to Alleyne, our Supreme Court could not “judicially usurp the legislative 

function and rewrite [the statute] or create a substantive offense which the 

General Assembly clearly did not desire.”). 
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Do you understand that?

[] STEWART: Yes.

N.T., 10/8/19, at 5. After acknowledging that Stewart’s initials were on the

written colloquy form, the trial court inquired as follows:

THE COURT: ... [K]nowing all of the things that we discussed, do

you still wish to enter a plea of guilty to the charges as may be

amended by your guilty plea colloquy?

[] STEWART: Yes.

Id. at 6. Thus, the record reflects no express admission by Stewart that he

had committed a prior DUI offense.9 

Because the Commonwealth’s claim lacks merit, we affirm the Order of

the trial court. 

Order affirmed. Superior Court jurisdiction relinquished.

 

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9 Contrary to the Commonwealth’s assertion, the trial court did not “reward”

Stewart for failing to withdraw his guilty plea. See Commonwealth’s Brief at

24. Under the negotiated plea, Stewart was to plead guilty to all charges, in

exchange for a sentence of 90 days in jail and compliance with the results of

a drug and alcohol evaluation. See N.T. (Guilty Plea), 10/8/19, at 4. The ?

However, as discussed above, Stewart could not constitutionally be sentenced

to the DUI offenses as second offenses, based upon his prior acceptance of

ARD. See Chichkin, 232 A.3d at 968. The trial court’s Order allowed Stewart

to plead guilty to all charges as first offenses, as required by Chichkin. Thus,

the trial court’s Order did not constitute a “reward” to Stewart, but was the

constitutionally-mandated result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2021